Commercial Painting Company, Inc. v. The Weitz Company, LLC ( 2024 )

10/01/2024
IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
February 13, 2024 Session
COMMERCIAL PAINTING COMPANY INC. v. THE WEITZ COMPANY
LLC ET AL.
Appeal from the Chancery Court for Shelby County
No. CH-06-1573 JoeDae L. Jenkins, Chancellor
___________________________________
No. W2019-02089-COA-R3-CV
___________________________________
This appeal is before this court on a remand from the Tennessee Supreme Court to address
issues that had been previously pretermitted related to a punitive damages award. Upon
consideration of the pretermitted issues in the present case, we affirm the judgment of the
chancery court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed
JEFFREY USMAN, J., delivered the opinion of the court, in which J. STEVEN STAFFORD,
P.J., W.S., and CARMA DENNIS MCGEE, J., joined.
Philip E. Beck, Atlanta, Georgia; Jeffrey C. Smith, Memphis, Tennessee; and John A.
Templer, Jr., Des Moines, Iowa, for the appellants, The Weitz Company, LLC, Federal
Insurance Company (NJ), and St. Paul Fire & Marine Insurance Company.
Scott A. Frick, Memphis, Tennessee, for the appellees, Commercial Painting Company,
Inc., and Liberty Mutual Insurance Company (MA).
OPINION
I.
The origins of this case, which is now before the Tennessee Court of Appeals for
the fourth time, trace back two decades. The Tennessee Supreme Court sketched out the
long journey this case has endured in the following manner:
This case stems from a contract dispute between a general contractor,
The Weitz Company, LLC, and its drywall subcontractor, Commercial
Painting Company, Inc. Weitz was the general contractor on a multi-building
retirement community in Shelby County. In December 2004, the parties
entered into a contract for Commercial Painting to perform drywall work on
the project.1 The contract included a schedule detailing the phases and timing
of construction. Weitz agreed to pay Commercial Painting $3,222,400 for
its work. Change orders later increased the amount to $3,315,189. The
parties had various disputes as the project progressed.
By the end of the contract, Weitz had paid Commercial Painting
twelve of its seventeen pay applications. Weitz refused to pay the remaining
five applications, claiming they were submitted untimely and contained
improper change order requests.
In August 2006, Commercial Painting sued Weitz2 and its sureties,
Federal Insurance Company and St. Paul Fire & Marine Insurance Company,
and The Village at Germantown in the Shelby County Chancery Court
seeking $1,929,428.74 in damages for breach of contract, including
attorney’s fees.3 Commercial Painting alleged that Weitz failed to properly
sequence, coordinate, monitor, and inspect the work of the various
subcontractors on the project, which caused Commercial Painting extra work
and forced it to work in a more inefficient and costly manner. The complaint
also included claims for payment under the performance bond issued by
Weitz’s sureties, interest on retainage under section 66-11-144 of the
Tennessee Code,4 unjust enrichment, enforcement of Commercial Painting’s
1
The work included installation of exterior ceiling insulation; exterior wall metal framing; exterior
wall insulation; light gauge metal partitions; gypsum board walls, ceilings, and soffits; and suspended
ceilings. The contract, with an effective date of September 28, 2004, was signed by the president of
Commercial Painting on November 1, 2004, and by Weitz’s representative on December 7, 2004.
2
The defendant named in the complaint’s caption was The Weitz Company, Inc., but the first
paragraph of the complaint referenced the defendant as The Weitz Company-National. These entities are
referred to herein collectively as “Weitz.”
3
Section 12.1 of the contract provides:
In the event it shall become necessary for either party to institute legal
proceedings against the other party for recovery of any amounts due and
owing under the Agreement, it is expressly agreed that the prevailing party
in any such action shall be entitled to recover from the non-prevailing
party all costs, including reasonable attorney’s fees, of pre-suit collection
attempts, suit, and post judgment or settlement collection including those
incurred on appeal.
4
Transferred to section 66-34-104 of the Tennessee Code by 2008 Public Acts, chapter 804, section
2, effective July 1, 2008.
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mechanic’s and materialman’s lien, and interest and attorney’s fees under the
Prompt Pay Act of 1991.5
Weitz answered and counterclaimed against Commercial Painting and
its surety for “no event less than” $500,000 in damages for costs allegedly
incurred on the project due to Commercial Painting’s delay and defective
workmanship.
In a later amendment to its complaint, Commercial Painting asserted
additional claims for fraud, intentional and negligent misrepresentation,
rescission/reformation of the contract, and $10,000,000 in punitive damages.
Commercial Painting alleged Weitz negotiated a six-month extension with
the project owner before executing the contract with Commercial Painting,
but the construction schedule attached to the contract did not reflect the
extension. Commercial Painting also claimed Weitz signed the contract
knowing the schedule was outdated by about eight months and that the actual
length of the delay was eight to twelve months. Commercial Painting alleged
that Weitz knew when it executed the contract that to make up for the delay,
it would have to compress the construction schedule and hire extra workers
to supplement the work of various subcontractors, including Commercial
Painting’s drywall work. Commercial Painting also asserted that after
negotiating the six-month extension with the project owner, Weitz issued an
amended construction schedule that was “fraudulent and unrealistic” in order
to earn an early completion bonus.6 According to Commercial Painting,
Weitz continued to issue construction schedules that were unrealistic, and
required the subcontractors to adhere to those schedules, never revealing the
actual length of the extension until near the end of the project when it became
clear that Weitz could not complete construction in time to earn the early
completion bonus. Commercial Painting contended that Weitz improperly
supplemented Commercial Painting’s work by falsely claiming Commercial
Painting was not completing its work according to a schedule that Weitz
knew contained false information about the project completion date and that
Weitz fraudulently charged Commercial Painting for the cost of the
supplemental drywall work. Weitz generally denied the allegations in the
amended complaint and reiterated the allegations in its counterclaim that
Commercial Painting was in breach of the subcontract and did not perform
its contractual duties in a timely and workmanlike manner.
5
Tenn. Code Ann. §§ 66-34-101 to -704.
6
The extension agreement negotiated by Weitz and the project owner included a bonus to Weitz of
$8,597 for each day, up to forty-five days, that the project was completed early.
-3-
The trial court granted partial summary judgment in favor of Weitz on
Commercial Painting’s claims for intentional/negligent misrepresentation
and fraud, rescission/reformation of the contract, and punitive damages.
After a bench trial, the trial court awarded Commercial Painting $450,464.26
for breach of contract, finding that Commercial Painting was entitled to
$600,464.26 less a $150,000 offset to Weitz for having to supplement
Commercial Painting’s work.
The Court of Appeals vacated the trial court’s award of partial
summary judgment to Weitz, concluding that Commercial Painting
established a genuine issue of material fact regarding the intentional and
negligent misrepresentation claims. Com. Painting Co. v. Weitz Co., LLC,
No. W2013-01989-COA-R3-CV, 2016 WL 3519015, at *2 (Tenn. Ct. App.
June 20, 2016).
After remand from the Court of Appeals, Commercial Painting filed
a second amended complaint including additional alleged facts. The second
amended complaint sought compensatory damages of $1,929,428.74, less a
payment of $456,170 made by Weitz in June 2013, and increased the punitive
damages claim to $200,000,000.
In September and October 2018, a jury heard the case. Commercial
Painting presented evidence that Weitz misled it from the outset of the
relationship by misrepresenting how far behind schedule the project was,
bids submitted by other subcontractors, and the existence of the agreement
for extension of time to complete the project. The jury also considered
evidence that Weitz tried to compress the work schedule by improperly
supplementing Commercial Painting’s drywall work, and wrongfully refused
to pay for extra work done by Commercial Painting’s employees.
The jury awarded Commercial Painting $1,729,122.46 in
compensatory damages on each of the claims—breach of contract, unjust
enrichment, and intentional misrepresentation, as well as its claim under
Weitz’s payment bond.7 The jury also awarded Commercial Painting
$3,900,000 in punitive damages. The trial court reduced the compensatory
damages by $456,170, the amount of Weitz’s earlier payment. The trial court
also awarded Commercial Painting $2,083.362.16 in pre-judgment interest
and $1,103,549.27 for litigation costs and attorney’s fees. The total judgment
7
The jury verdict form showed awards to Commercial Painting of $1,729,122.46 on its intentional
misrepresentation claim; $1,729,122.46 on its breach of contract claim; and $1,729.122.46 on its unjust
enrichment claim.
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was $8,359,863.83.8
Weitz appealed, and the Court of Appeals held that the economic loss
doctrine applied outside the products liability context when the contract was
negotiated between sophisticated commercial entities. The intermediate
appellate court affirmed the trial court’s judgment for compensatory damages
for breach of contract; dismissed the tort claim for intentional
misrepresentation and reversed the punitive damages award based on the
economic loss doctrine; reversed the trial court’s award of pre- and post-
judgment interest after finding that interest was not an available remedy
under the parties’ contract; and vacated the trial court’s award of attorney’s
fees in part after determining that Commercial Painting was entitled only to
attorney’s fees incurred in obtaining the compensatory damages award.
Com. Painting Co. v. Weitz Co., LLC, No. W2019-02089-COA-R3-CV,
2022 WL 737468, at *1 (Tenn. Ct. App. Mar. 11, 2022) [(“Commercial
Painting III”)].
Com. Painting Co. Inc. v. Weitz Co. LLC, 676 S.W.3d 527, 529–32 (Tenn. 2023)
Following issuance of this court’s decision in the third iteration of this case, the
Tennessee Supreme Court granted permission to appeal. Id. at 532. The state high court
did so to consider two issues:
1. Whether the Court of Appeals erred in applying [the Tennessee Supreme]
Court’s holding in Milan Supply Chain Solutions, Inc. v. Navistar, Inc., 627
S.W.3d 125 (Tenn. 2021), and expanding the application of the economic
loss doctrine to the circumstances of this case.
2. Whether the Court of Appeals erred in vacating the trial court’s award of
attorney’s fees and in limiting the scope of recoverable fees on remand, and
whether the Court of Appeals erred in denying Commercial Painting
Company an award of costs and fees on appeal.
Id.8
The judgment for compensatory damages and pre-judgment interest in the amount of
$3,356,314.62 was entered against The Weitz Company, LLC, Federal Insurance Company, and St. Paul
Fire & Marine Insurance Company, jointly and severally. Punitive damages were awarded solely against
Weitz. There was no verdict against The Village at Germantown, Inc. The trial court dismissed
Commercial Painting’s claims against The Village at Germantown and The Weitz Company, Inc. with
prejudice, and these entities are not parties to this appeal. The trial court also dismissed with prejudice
Weitz’s counterclaims against Commercial Painting and its surety. Commercial Painting withdrew its
claim for rescission/reformation before trial.
-5-
Ultimately, the Tennessee Supreme Court held that “the economic loss doctrine only
applies in products liability cases and should not be extended to other claims. Thus, the
economic loss doctrine does not bar Commercial Painting’s recovery of compensatory and
punitive damages based on its tort claim of intentional misrepresentation against Weitz.”
Id. at 542. The Tennessee Supreme Court, accordingly, reversed “the Court of Appeals’
ruling as to the applicability of the economic loss doctrine” and pretermitted the second
issue, the attorney’s fees issue, in the appeal “[b]ecause this ruling makes Commercial
Painting the only prevailing party.” Id. The Tennessee Supreme Court also “affirm[ed]
the judgment in part of the trial court” and remanded to the Court of Appeals “for review
of any pretermitted punitive damage issues consistent with this opinion.” Id.II.
Because this case is before us on remand from the Tennessee Supreme Court, we
are obligated to adhere to its directive, considering no more or less than what we have been
directed to consider. Simply stated, “inferior courts must abide by the orders, decrees, and
precedents of higher courts.” Weston v. State, 60 S.W.3d 57, 59 (Tenn. 2001) (quoting
State v. Irick, 906 S.W.2d 440, 443 (Tenn. 1995)). “Neither a trial court nor an intermediate
court has the authority to expand the directive or purpose . . . imposed upon remand.” Id.;
see also Payne v. CSX Transp., Inc., 467 S.W.3d 413, 438 (Tenn. 2015) (“It is not unusual
for [the Supreme Court] to instruct . . . an intermediate appellate court to address . . .
pretermitted issues on remand . . . .”). Here, the Supreme Court has mandated that we
“review any pretermitted issues regarding the jury’s award of punitive damages.”
The parties, however, disagree as to what issues were pretermitted in Commercial
Painting III. Consequently, before this court can fulfill its charge to “review any
pretermitted issues regarding the jury’s award of punitive damages,” we must first
determine precisely what those issues are. Weitz asserts that the pretermitted issues
include: (1) whether the independent duty rule bars the award of punitive damages in this
case; (2) whether this case falls within the narrow circumstances where Tennessee law
allows for punitive damages in a breach of contract action; (3) whether the terms of the
parties’ contractual agreements prohibit the award of punitive damages; (4) whether the
trial court erred in awarding punitive damages under Hodges v. S.C. Toof & Co., 833
S.W.2d 896, 902 (Tenn. 1992) (“the Hodges issue”); (5) whether the amount of the punitive
damages award violated due process;9 and (6) whether the trial court violated the Lakeside
rule. In its briefing, Weitz raised two issues in connection with a purported violation of
what it terms the Lakeside rule. The first is a contention that the trial court failed to perform
its role as a thirteenth juror, and the second is that the trial court erred under the Lakeside
9
One of the issues identified by Weitz is “[t]he impropriety of a $3.9 million punitive damages
award in a case of this type.” This matches a subsection of Weitz’s briefing, but that subsection is primarily
addressed to the Hodges issue and, otherwise, raises a challenge based upon an excessive punitive damages
award that violates constitutional due process protections.
-6-
decision by adopting Commercial Painting’s proposed findings of fact and conclusions of
law.
Commercial Painting appropriately10 concedes that the Hodges issue was
pretermitted and thus is before this court on remand. Commercial Painting, however,
contends that this is the only issue that was pretermitted.
In determining which issues were pretermitted, we note that Black’s Law Dictionary
provides two definitions for the word “pretermit”: (1) “To ignore or disregard purposely”;
and (2) “To neglect, overlook, or omit accidentally; esp., to fail to include through
inadvertence.” Pretermit, Black’s Law Dictionary (12th ed. 2024). In Commercial
Painting III, after having extensively addressed numerous issues, the Tennessee Court of
Appeals expressly stated that “[a]ll remaining issues related to the punitive damages award
are therefore pretermitted.” Com. Painting Co. Inc., 2022 WL 737468, at *28. The
Tennessee Supreme Court noted that this court had “pretermitted all remaining issues
related to the punitive damages award.” Com. Painting Co. Inc., 676 S.W.3d at 541. As
noted above, the Tennessee Supreme Court remanded for review of “any pretermitted
issues regarding the jury’s award of punitive damages consistent with this opinion.” Id.
When remanding to a lower court, it is the province of the Tennessee Supreme Court
to determine how broad or narrow the scope of its directive will be. Where the Tennessee
Supreme Court wants to direct a lower court to reconsider an issue it previously addressed
in light of a ruling of the Tennessee Supreme Court or upon some other basis, it employs
language to such effect. See, e.g., Athlon Sports Commc’ns, Inc. v. Duggan, 549 S.W.3d
107, 109 (Tenn. 2018) (stating “we remand to the trial court to reconsider its determination
on valuation in light of our decision to partially overrule Blasingame”); State v. Williams,
468 S.W.3d 510, 511–12 (Tenn. 2015) (noting that the Court had “remanded the case for
consideration in light of White”); Taylor v. State, 443 S.W.3d 80, 86 (Tenn. 2014)
(indicating that “[i]n light of these considerations, we conclude that the appropriate course
of action is to remand for the post-conviction court to reconsider the motion to quash under
the proper standard”). Alternatively, where the Tennessee Supreme Court merely wants
this court to consider issues that had been previously ignored or overlooked, it employs
language to that effect. See, e.g., Ingram v. Gallagher, 671 S.W.3d 428, 437 (Tenn. 2023)
(stating that “[t]his case is remanded to the Court of Appeals for consideration of all issues
it deemed pretermitted as moot”); Moss v. Shelby Cnty. Civ. Serv. Merit Bd., 597 S.W.3d
823, 834 (Tenn. 2020) (indicating that the Court was remanding “this case to the Court of
Appeals for consideration of pretermitted issues”). In the present case, the Tennessee
Supreme Court did not remand for reconsideration of the issues appealed or some subset
10
Because this court reversed the judgment as to the punitive damages award based upon the
economic loss doctrine and relatedly the contract agreements of the parties, this court did not address
whether the trial court properly applied the Hodges factors to determine if the punitive damages award was
warranted.
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thereof in light of its decision but instead only for consideration by this court of the
“pretermitted issues related to the punitive damages award.”
There is no basis in the Tennessee Supreme Court’s decision to suggest its use of
the term pretermitted in its remand to this court employed the term in any other form than
the conventional sense thereof. Additionally, there is no basis in the Tennessee Supreme
Court’s decision for concluding that there exists daylight between the issues this court
stated it was pretermitting in Commercial Painting III, an action which was noted by the
Tennessee Supreme Court, and the “pretermitted issues” that this court has been directed
to review on remand. The issues that this court indicated were pretermitted in Commercial
Painting III are the same issues that the Tennessee Supreme Court noted had been
pretermitted by this court in Commercial Painting III and are the same issues that were
remanded as the issues that had been pretermitted in Commercial Painting III. In other
words, X equals X equals X. There is no hidden mysterious gnostic meaning of the term
pretermitted that is at work in the present case.
With this understanding, we turn to the parties’ divide over which issues were
pretermitted in Commercial Painting III and hence which, if any, issues join with the
Hodges issue, which the parties properly agree was pretermitted, in being before this court
on remand. Regarding the first issue Weitz asserts was pretermitted — whether punitive
damages are barred by the independent duty rule — this court in Commercial Painting III
specifically addressed this issue. See Com. Painting Co. Inc. v. Weitz Co. LLC, 2022 WL
737468, at *12-13. In Commercial Painting III, this court concluded that Weitz waived its
independent duty rule argument by failing to raise the issue before the trial court.11 Id.With this issue having been neither ignored nor overlooked, it was not pretermitted, and,
accordingly, consideration of this issue would be beyond the scope of the remand.
Weitz also asserts that two contract-related issues — whether this case falls within
11
We begin with the independent duty rule, as this argument is easily disposed of. .
. . [T]o the extent that that the independent duty rule provides a separate basis for
Appellants’ arguments, we conclude that it is waived. . . .
In this case, Appellants assert that they did ask for a jury instruction on the
independent legal duty doctrine, which instruction was refused by the trial court. The
problem is that Appellants thereafter did not specifically raise this ruling as an error in their
motion for new trial.
. . . Appellants did not specifically raise the issue of the independent duty doctrine
in their memorandum. Instead, they once again confined their jury instruction arguments
to the question of fraud and Weitz’s reasonable beliefs under the contract. Because this
issue was not raised in Appellants’ motion for new trial, it is waived under Rule 3(e).
Com. Painting Co. Inc., 2022 WL 737468, at *12–13.
-8-
the narrow circumstances where Tennessee law allows for punitive damages in a breach of
contract action and, relatedly, whether the actual terms of the parties’ contractual
agreements prohibit the award of punitive damages — were pretermitted in Commercial
Painting III. Weitz’s underlying substantive briefing on the two contract issues
significantly overlaps, as did this court’s analysis in addressing the arguments as to these
two issues. Over the course of multiple pages of the opinion, this court in Commercial
Painting III extensively discussed the contract issues. This court ultimately ruled in
Commercial Painting III that Commercial Painting could not use fraud as an exception that
would allow for recovery of punitive damages and was, accordingly, bound by the contract
terms that precluded recovery of punitive damages, with the economic loss doctrine being
critical to these conclusions.12 Having extensively discussed the contract issues, this court
12
Punitive damages, while typically “not available in a breach of contract case,” may
be awarded in a breach of contract action under “certain circumstances.” . . . “[B]ecause
punitive damages are to be awarded only in the most egregious of cases, a plaintiff must
prove the defendant’’s intentional, fraudulent, malicious, or reckless conduct by clear and
convincing evidence.” . . . Thus, the Tennessee Supreme Court appeared to equate
egregious conduct with conduct that was committed intentionally, fraudulently,
maliciously, or recklessly, so long as that culpability is proven by “evidence in which there
is no serious or substantial doubt about the correctness of the conclusions drawn from the
evidence.” . . .
Because the jury found that Weitz had engaged in the conduct meeting that
culpability level under the clear and convincing evidence standard, Commercial Painting
argues that this is the type of case in which punitive damages should be awarded.
Specifically, Commercial Painting asserts that our only inquiry should be whether material
evidence supports the jury’s finding that Weitz engaged in egregious conduct intentionally,
fraudulently, maliciously, or recklessly.
We respectfully disagree. Importantly, as previously discussed, because the
economic loss rule is applicable here, Commercial Painting is limited to its own contract
remedies.
...
Commercial Painting argues that one exception is present in this case: fraud.
Specifically, Commercial Painting argues that it defies logic to allow a party to take
advantage of the limiting terms of a contract when the contract was procured by fraud.
Commercial Painting is correct, in part. Specifically, the Tennessee Supreme Court has
held that “[l]imitations against liability for negligence or breach of contract have generally
been upheld in this state in the absence of fraud or overreaching.” Houghland, 755 S.W.2d
at 773. The problem, of course, with this argument is that under economic loss rule and
the limited fraud exception adopted by the Tennessee Supreme Court, Commercial
Painting cannot utilize a claim of fraud to avoid the consequences of its own contractual
agreements. See Milan Supply Chain, 627 S.W.3d at 155. Indeed, limiting parties to their
agreed upon contractual remedies is the very purpose of the economic loss rule when
applicable to a situation that is governed by a contract. See Milan Supply Chain COA, 2019
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did not indicate they were among those it was pretermitting in Commercial Painting III.
Accordingly, consideration of these contract issues on remand would exceed the scope of
the remand.
As noted above in footnote 9, Weitz identifies as a pretermitted issue “[t]he
impropriety of a $3.9 million punitive damages award in a case of this type.” This matches
a subsection of Weitz’s briefing, but that subsection is primarily addressed to the Hodges
issue and, otherwise, raises only a challenge based upon an excessive punitive damages
award that violates constitutional due process protections. Insofar as this issue is simply
Weitz’s Hodges argument under a different label, we agree, as already noted and as
conceded by Commercial Painting, that this issue was pretermitted. Regarding the
contention as to an excessive punitive damages award in violation of constitutional due
process protections, this court did not address this issue in any form in Commercial
Painting III; it was pretermitted therein.
Weitz also asserts that this court pretermitted in Commercial Painting III the issue
of “[t]he Trial Court’s violation of the Lakeside Rule.” In Weitz’s briefing, there are
actually two Lakeside-related arguments advanced by Weitz — whether the trial court
failed to perform its role as the thirteenth juror and whether the trial court violated the
Lakeside rule by adopting Commercial Paining’s proposed finding of facts and conclusions
of law. While noting Weitz’s Lakeside-related argumentation, this court ultimately and
expressly did not rule upon or address this argument in relation to the punitive damages
award. This court expressly stated in Commercial Painting III that
From our reading of Appellants’ brief, they do not take issue with the trial
court’s order approving the jury’s verdict or the order denying the motion for
new trial. Instead, they are primarily concerned with the December 12, 2018
order approving the award of punitive damages; we, however, have reversed
the award of punitive damages on other grounds. Given that Appellant’s
argument under UHS of Lakeside does not appear directed specifically at the
orders approving the compensatory damages and the law clearly provides the
trial court with wide discretion in approving a jury verdict, we decline to
assign error as to those orders.
Com. Painting Co. Inc., 2022 WL 737468, at *29. In other words, having reversed the
WL 3812483, at *4. And, when the rule is applicable, this limitation applies even where
fraud is present if the contract is between sophisticated commercial entities and results in
only economic losses, as is the case here. See Milan Supply Chain, 627 S.W.3d at 155. As
such, to allow punitive damages that have been clearly waived under the Subcontract would
essentially be to negate the entire purpose of the economic loss rule as it applies in this
specific case. We decline to do so.
Com. Painting Co. Inc., 2022 WL 737468, at *24–25, *28.
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punitive damages award on other grounds, this court expressly declined to consider the
Lakeside issues in relation to the punitive damage award, noting the matter but reaching no
conclusions thereupon regarding punitive damages.
Therefore, there are four punitive damages issues that were pretermitted in
Commercial Painting III that, accordingly, fall within the scope of the Tennessee Supreme
Court’s remand: (1) whether punitive damages were appropriate under Hodges, (2) whether
the punitive damages award was constitutionally excessive in violation of due process
protections, (3) whether the trial court failed to perform its role of thirteenth juror, and (4)
whether the trial court erred in adopting Commercial Paining’s proposed finding of facts
and conclusions of law. In reviewing the parties’ briefing on these issues, it is apparent
that these were not the primary grounds contested in Commercial Painting III. It is to these
pretermitted issues that we turn our attention.
III.
We begin with addressing the issue of whether the punitive damage award was
appropriate under Hodges v. S.C. Toof & Co., 833 S.W.2d 896 (Tenn. 1992). Weitz spends
multiple pages at the close of its principal brief, pages 89-92, articulating the procedure to
be utilized in accordance with the Hodges decision and delineating the Hodges factors that
are to be applied by the trial court in assessing the punitive damages award. Having recited
the Hodges procedure and factors, the entirety of the actual argument advanced by Weitz
in asserting error as to this issue consists of the following:
While the Trial Court and the jury in this case professed to apply the Hodges
factors, that representation cannot be reconciled with the undisputed facts of
this case.
The record reflects that the trial court quite clearly indicated that it was following the
procedure delineated under Hodges, that it had considered the Hodges factors, and made
findings and conclusions addressing the Hodges factors. On the surface, there is no
apparent deficiency regarding the trial court’s adherence to the parameters set forth by the
Tennessee Supreme Court in the Hodges decision regarding punitive damages awards.
Weitz takes the view that trial court’s non-adherence to Hodges is self-evident, but
we are left to wonder how and why the trial court’s representation that it adhered to Hodges
cannot be reconciled with the facts of this case. The Tennessee Supreme Court has
explained that
[i]t is not the role of the courts, trial or appellate, to research or construct a
litigant’s case or arguments for him or her, and where a party fails to develop
an argument in support of his or her contention or merely constructs a skeletal
argument, the issue is waived.
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Sneed v. Bd. of Prof’l Responsibility of Sup. Ct., 301 S.W.3d 603, 615 (Tenn. 2010). While
noting what Hodges requires and what factors are to be considered in accordance therewith,
Weitz fails to articulate where the trial court was deficient. It is not the role of this court
to develop that argument for Weitz. We have at best a skeletal argument from Weitz;
accordingly, Weitz’s Hodges-based argument has been waived. See id.IV.
We next turn to the issue of whether the punitive damages award was
unconstitutional in violation of due process protections. In the same subsection of Weitz’s
brief in which it delineates the Hodges procedure and factors, Weitz also notes, providing
authority in support thereof, that punitive damages awards can be excessive and violate
constitutional due process safeguards. As noted above, in relation to its Hodges argument,
Weitz ultimately offered only a conclusory assertion that Hodges was violated. Regarding
whether the award was constitutionally excessive, Weitz presents even less, failing to even
offer a conclusory assertion that the award was excessive. Weitz’s briefing sets forth
authority that a punitive damages award can be excessive in violation of constitutional due
process protections and noting certain guideposts that should be considered in determining
whether an award is excessive. Weitz fails, however, to actually state that the amount of
the award is constitutionally excessive. Additionally, even understanding Weitz’s brief as
implicitly making such an assertion, Weitz fails to offer any explanation or argumentation
in support of a contention that the punitive damages award is constitutionally excessive.
As noted above, the Tennessee Supreme Court has explained that
[i]t is not the role of the courts, trial or appellate, to research or construct a
litigant’s case or arguments for him or her, and where a party fails to develop
an argument in support of his or her contention or merely constructs a skeletal
argument, the issue is waived.
Sneed, 301 S.W.3d at 615. On this issue, we have at best a skeletal argument from Weitz;
accordingly, Weitz’s argument regarding a constitutionally excessive punitive damage
award has been waived. See id.
V.
As noted above, Weitz briefing in connection with purported errors regarding to the
punitive damages award in connection with the Tennessee Supreme Court’s decision in
Smith v. UHS of Lakeside, Inc., 439 S.W.3d 303 (Tenn. 2014), actually touches upon two
issues. Of the two, we first consider Weitz’s contention that the trial court failed to perform
its role as thirteenth juror.
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“As thirteenth juror, the trial judge must independently weigh and review the
evidence presented at trial to determine whether it preponderates in favor of the verdict and
decide whether he or she agrees with and is satisfied with the jury’s verdict.” Meals ex rel.
Meals v. Ford Motor Co., 417 S.W.3d 414, 420 (Tenn. 2013). The Tennessee Supreme
Court has indicated that “[t]he purpose of the thirteenth juror rule is to be a ‘safeguard . . .
against a miscarriage of justice by the jury.’” Borne v. Celadon Trucking Servs., Inc., 532
S.W.3d 274, 308 (Tenn. 2017) (quoting State v. Moats, 906 S.W.2d 431, 434 (Tenn. 1995)).
Regarding this role, the Tennessee Supreme Court explained
The reasons given for the rule are, in substance, that the [trial] judge hears
the testimony, just as the jury does, sees the witnesses, and observes their
demeanor upon the witness stand; that, by his [or her] training and experience
in the weighing of testimony, and the application of legal rules thereto, he
[or she] is especially qualified for the correction of any errors into which the
jury by inexperience may have fallen, whereby they have failed, in their
verdict, to reach the justice and right of the case, under the testimony and the
charge of the court; that, in our system, this is one of the functions the [trial]
judge possesses and should exercise—as it were, that of a thirteenth juror. So
it is said that he [or she] must be satisfied, as well as the jury; that it is his [or
her] duty to weigh the evidence; and, if he [or she] is dissatisfied with the
verdict of the jury, he [or she] should set it aside.
Id. (quoting Davidson v. Lindsey, 104 S.W.3d 483, 488 (Tenn. 2003)).
With regard to appellate review of a trial court’s performance of its role as thirteenth
juror, the Tennessee Supreme Court has observed that
[i]n addressing a motion for a new trial, the trial court has such broad
discretion that it is not bound to give reasons for its action in granting or
denying a new trial based on the preponderance of the evidence. Indeed,
when a trial judge approves the verdict without comment, the appellate court
will presume that the trial judge has adequately performed his function as the
thirteenth juror.
Id. “However, trouble ensues where the trial court upholds the verdict yet expresses some
level of dissatisfaction with the verdict or with the weight of the evidence or makes
statements indicating that it misconceives its duty as thirteenth juror.” Fam. Tr. Servs. LLC
v. Green Wise Homes LLC, 693 S.W.3d 284, 297 (Tenn. 2024).
The trial court in the present case stated the following:
The Court, in considering the instant motion, has conducted an in depth
review of the trial evidence and concludes that the evidence preponderates in
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favor (supports the verdict reached by the jury) of the jury’s verdict. The
court is satisfied with the verdict and concludes that the verdict is supported
in all respects by the preponderance of the evidence and the award of punitive
damages is supported by clear and convincing evidence.
There is nothing in the present case to suggest the trial court did not perform its role as the
thirteenth juror; to the contrary, the record supports the conclusion that the trial court did
perform its role. Accordingly, we find Weitz’s contention to the contrary unavailing.
VI.
Next, we address Weitz’s argument that the trial court erred in adopting almost
verbatim an extensive proposed order from Commercial Painting in setting forth the trial
court’s Hodges-related findings of fact and law regarding the jury’s punitive damages
award. On appeal before this court, Weitz notes that the Tennessee Supreme Court in its
Lakeside decision “instructed that findings of fact, conclusions of law, opinions, and orders
prepared by the trial judges themselves are preferable to those prepared by counsel.” Weitz
contends that by adopting an essentially verbatim proposed order submitted by Commercial
Painting, the trial court judge failed to discharge his duty and seeks reversal on this basis.
In Lakeside, the Tennessee Supreme Court was confronted with circumstances in
which a trial court judge orally announced during a hearing on a summary judgment motion
that she was “ruling now,” declaring that “I’m directing the defendant to prepare the order
and to establish the rationale for the court’s ruling in quite specific detail . . . .” Lakeside,
439 S.W.3d at 311. Counsel for the losing party inquired whether the trial court’s ruling
was as to both ordinary negligence and negligence per se claims. Id. The trial court judge
indicated her ruling was as to all the claims. Id. A proposed order was subsequently
prepared by the prevailing party and the counsel for the losing party argued that the order
went well beyond anything the court had stated or ruled and was essentially simply a wish
list of findings for the prevailing party. Id. The trial court conceded that there were parts
of the order that only “may have been part of [her] thought processes” and that she had not
stated them. Id. The trial court, nevertheless, adopted the proposed order. Id.
The appellant argued in the Lakeside case “that Tenn. R. Civ. P. 56.04 requires trial
courts to state their grounds for granting or denying a summary judgment before a draft
order is submitted to the court.” Id. at 312. The Tennessee Supreme agreed, ruling “that
Tenn. R. Civ. P. 56.04 requires the trial court, upon granting or denying a motion for
summary judgment, to state the grounds for its decision before it invites or requests the
prevailing party to draft a proposed order.” Id. at 316. Much of the Tennessee Supreme
Court’s analysis in Lakeside was tied to the specifics of summary judgments in Tennessee,
especially tracking the evolution and language of Tennessee Rule of Civil Procedure 56.04,
which includes a requirement that “[t]he trial court shall state the legal grounds upon which
the court denies or grants the motion, which shall be included in the order reflecting the
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court’s ruling.” Id. at 311–16.
The Court in Lakeside, however, went further, addressing more generally the
intersection between party-prepared orders and the duties of trial courts. Id. at 312–16.
The Tennessee Supreme Court indicated that “findings of fact, conclusions of law,
opinions, and orders prepared by trial judges themselves are preferable to those prepared
by counsel.” Id. at 314. One of the major concerns with party-prepared orders which the
Tennessee Supreme Court highlighted is “the potential for overreaching and exaggeration
on the part of attorneys preparing findings of fact when they have already been informed
that the judge has decided in their favor.” Id. at 315 (quoting Anderson v. City of Bessemer
City, N.C., 470 U.S. 564, 572 (1985)). As for other concerns with reliance upon party-
prepared orders, the Tennessee Supreme Court stated
A trial court’s verbatim adoption of verbiage submitted by the prevailing
party detracts from the appearance of a hardworking, independent judge and
does little to enhance the reputation of the judiciary. At the very least, it
gives rise to the impression that the trial judge either has not considered the
losing party’s arguments, or has done little more than choose between two
provided options rather than fashioning a considered, independent ruling
based on the evidence, the filings, argument of counsel, and applicable legal
principles. At worst, it risks creating an appearance of bias or the impression
that the trial court ceded its decision-making responsibility to one of the
parties.
Id. at 315 (footnotes omitted). While expressing these concerns, the Court indicated that
there are “acceptable reasons for permitting trial courts to request the preparation of
proposed findings of fact, conclusions of law, and orders. They can promote the
expeditious disposition of cases, and they may, when used properly, assist the trial court in
placing the litigants’ factual and legal disputes in sharper focus.” Id. at 316.
Ultimately, the Tennessee Supreme Court indicated that “most courts have
approved, but not recommended, the practice of trial courts receiving and using party-
prepared findings of fact, conclusions of law” Id. at 315–16. Where “courts have declined
to accept findings, conclusions, or orders [is] when the record provides no insight into the
trial court’s decision-making process, or when the record ‘casts doubt’ on whether the trial
court ‘conducted its own independent review, or that the opinion is the product of its own
judgment.’” Id. at 316 (citations omitted).
Addressing summary judgment rulings, the Tennessee Supreme Court observed in
Lakeside the following:
Despite the amendments to Tenn. R. Civ. P. 56.04 making the
statement of grounds mandatory, the Court of Appeals has been reticent to
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vacate summary judgment orders that plainly do not comply with Tenn. R.
Civ. P. 56.04 and to remand them to the trial court for further consideration.
The court continues to conduct archeological digs and to review summary
judgment orders when the basis for the trial court’s decision can be readily
gleaned from the record and to remand the case only when their practiced
eyes cannot discern the grounds for the trial court’s decision.
We readily agree that judicial economy supports the Court of
Appeals’ approach to the enforcement of Tenn. R. Civ. P. 56.04 in proper
circumstances when the absence of stated grounds in the trial court’s order
does not significantly hamper the review of the trial court’s decision.
However, in the future, the resolution of issues relating to a trial court’s
compliance or lack of compliance with Tenn. R. Civ. P. 56.04 should also
take into consideration the fundamental importance of assuring that a trial
court’s decision either to grant or deny a summary judgment is adequately
explained and is the product of the trial court’s independent judgment.
Id. at 314.
In the wake of the Tennessee Supreme Court’s decision, this court has confronted
numerous cases in which Lakeside issues have arisen, including many that stand outside of
the bounds of summary judgment rulings and the dynamics of Tennessee Rule of Civil
Procedure 56.04 that were before the Court in Lakeside itself. Following the reasoning of
Lakeside beyond the summary judgment context, this court has applied Lakeside to a
number of circumstances in which trial courts are required to issue findings of fact and
conclusions of law.13 As particularly prominent examples, this court has applied Lakeside
to trial court findings in bench trials in general14 and parental termination proceedings in
particular.15 This court has also applied the Lakeside principals to a wide variety of other
13
See, e.g., Highlands Physicians, Inc. v. Wellmont Health Sys., 625 S.W.3d 262, 281 (Tenn. Ct.
App. 2020) (noting that “[s]ubsequent cases decided by this Court have applied the rule articulated in Smith
to matters (1) not involving summary judgment and/or (2) wherein the trial court’s directive to draft a
proposed order or findings was extended to both parties rather than just the prevailing party”); Mitchell v.
Mitchell, No. E2017-00100-COA-R3-CV, 2019 WL 81594, at *6 (Tenn. Ct. App. Jan. 3, 2019)(“Although
Smith involved summary judgment, this Court has previously applied the reasoning in Smith to proceedings
not involving summary judgment.”)
14
See, e.g., Deberry v. Cumberland Elec. Membership Corp., No. M2017-02399-COA-R3-CV,
2018 WL 4961527, at *2 n.1 (Tenn. Ct. App. Oct. 15, 2018) (“While the court in Smith examined
independent judgment in the summary judgment context, the holding in Smith is also applicable to other
cases including bench trials, such as in the present case.”); F & M Mktg. Servs., Inc. v. Christenberry
Trucking & Farm, Inc., No. E2015-00266-COA-R3-CV, 2015 WL 6122872, at *7 (Tenn. Ct. App. Oct. 19,
2015) (applying Lakeside to findings of fact and conclusions of law following a bench trial).
15
See, e.g., In re Bentley J., No. E2022-00622-COA-R3-PT, 2023 WL 2380507, at *4 (Tenn. Ct.
- 16 -
trial court findings of fact and conclusions of law16 — as an illustration, a trial court’s
making findings related to determining prejudgment interest in response to a remand.17
Where a trial court is required to issue factual and legal findings in civil proceedings, the
general Lakeside understanding of the intersection between party-prepared orders and trial
court findings has often followed, though doing so with sensitivity to the variances between
the circumstances thereof and summary judgment.
We are aware of no Tennessee appellate decision that has ruled upon the
applicability of the Tennessee Supreme Court’s reasoning in Lakeside to findings in
punitive damages cases that a trial court is required to make pursuant to the Hodges
decision. Regarding such findings, the Tennessee Supreme Court has directed that “the
trial court must thoroughly review any award of punitive damages made by the jury.”
Coffey v. Fayette Tubular Prod., 929 S.W.2d 326, 328 (Tenn. 1996). To satisfy this
requirement, “[i]n jury cases the trial judge must review the jury’s award of punitive
damages and ‘clearly set forth the reasons for decreasing or approving all punitive awards
in findings of fact and conclusions of law demonstrating a consideration of all factors on
which the jury is instructed.’” Culbreath v. First Tenn. Bank Nat. Ass’n, 44 S.W.3d 518,
528 (Tenn. 2001) (quoting Hodges, 833 S.W.2d at 902). This review in punitive damages
cases “is referred to as a Hodges review,”18 in reference to the Tennessee Supreme Court
App. Mar. 7, 2023) (“While Smith dealt with trial court rulings under Tenn. R. Civ. P. 56.04, this Court
also applies Smith in the context of parental rights termination.”); In re Nathan C., No. E2019-01197-COA-
R3-PT, 2020 WL 730623, at *4 (Tenn. Ct. App. Feb. 12, 2020) (“While Smith involved a motion for
summary judgment, this Court has applied the reasoning in Smith to proceedings involving the termination
of parental rights.”); In re Marneasha D., No. W2017-02240-COA-R3-PT, 2018 WL 4847108, at *4 (Tenn.
Ct. App. Oct. 4, 2018) (collecting cases) (“Although Smith involved a summary judgment case, this Court
has previously applied the reasoning in Smith to proceedings involving the termination of parental rights.”);
In re Atrivium K., No. M2017-01046-COA-R3-PT, 2018 WL 4037414, at *3 (Tenn. Ct. App. Aug. 23,
2018) (applying Lakeside to findings of fact and conclusions of law in a parental termination proceeding);
In re Dakota M., No. E2017-01855-COA-R3-PT, 2018 WL 3022682, at *6 (Tenn. Ct. App. June 18, 2018)
(applying Lakeside to findings of fact and conclusions of law in a parental termination proceeding); In re
Colton B., No. M2017-00997-COA-R3-PT, 2017 WL 6550620, at *2–5 (Tenn. Ct. App. Dec. 22, 2017)
(stating that “it appears that the holding in Smith is equally applicable in other cases where trial courts are
required to make findings of fact and conclusions of law, such as following bench trials in termination
proceedings”); In re Alleyanna S., No. M2015-00544-COA-R3-PT, 2016 WL 697359, at *5 (Tenn. Ct.
App. Feb. 19, 2016) (applying Lakeside to a parental termination action).
16
See, e.g., Hoering v. Hoering, No. E2021-00529-COA-R3-CV, 2022 WL 987094, at *3 (Tenn.
Ct. App. Apr. 1, 2022); cf. Roach v. Moss Motor Co., Inc., No. M2021-00511-COA-R3-CV, 2022 WL
1439349, at *4–5 (Tenn. Ct. App. May 6, 2022) (applying to ruling upon a motion to alter or amend); but
see Dialysis Clinic, Inc. v. Medley, No. M2017-00269-COA-T10B-CV, 2017 WL 1137100, at *8 (Tenn.
Ct. App. Mar. 27, 2017) (“Nothing in Smith requires that the same standard is applicable with regard to all
orders entered by the trial court or specifically to orders entered regarding discovery disputes.”)
17
See, e.g., Roach, 2022 WL 1439349, at *4–5; Hartigan v. Brush, No. E2020-01442-COA-R3-
CV, 2021 WL 4983075, at *8–12 (Tenn. Ct. App. Oct. 27, 2021).
18
McLemore ex rel. McLemore v. Elizabethton Med. Inv., Ltd. P’Ship, 389 S.W.3d 764, 780 (Tenn.
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decision setting forth this obligation. See generally Hodges, 833 S.W.2d 896.
Ultimately, we need not decide whether Lakeside applies to Hodges findings issued
by a trial court. Such a decision is unnecessary because assuming for purposes of argument
that Lakeside is applicable to such findings, Weitz is, nevertheless, not entitled to what it
seeks, reversal. Furthermore, vacating and remanding is unwarranted under the
circumstances of the present case.
Unlike many cases presenting Lakeside questions to this court,19 the trial court in
this case itself was confronted with a motion that asserted, among other objections, that the
trial court had erred in failing to meet the expectations of trial courts established in
Lakeside. The motion was filed as part of a motion for a new trial filed approximately a
month after issuance of the trial court’s order setting forth the Hodges findings, and the
trial court ruled upon the motion, in which Weitz advanced its Lakeside objection,
approximately ten months later. In its order ruling upon the motion, the trial court reflected
upon Weitz’s Lakeside arguments, the expectations for trial courts under Lakeside, the
evidence of this case, the parties’ proposed findings, the court’s own actions, and its own
understanding of the facts and law in the case. The trial court then declared the following:
Defendant makes much out of the fact that the court did not conduct
a hearing upon the proposed findings and conclusions submitted by the
parties. The court did not require such a hearing, having sat through a three
(3) week-long trial with the parties, and having reviewed the proof and notes
to determine the appropriateness of the award of punitive damages. The
Court was quite familiar with the proof and legal arguments of the parties.
Quite simply, the Court saw no basis in fact or law to disagree with the jury’s
verdict.
The Court considered the proposed findings and conclusions of law
of both parties. Defendant’s proposed findings and conclusions were
diametrically opposed to the verdict without sufficient support or
corroboration to convince the court that its position should be accepted. On
the other hand, Plaintiff’s proposed findings and conclusions mirrored much,
if not all, of the credible testimony presented at trial, while discounting the
less credible evidence offered by the Defendant. The Court considered the
Ct. App. 2012).
19
See, e.g., Long v. Long, 642 S.W.3d 803, 814 (Tenn. Ct. App. 2021) (indicating the issue is often
considered without an argument having been raised before the trial court); Vaughn v. DMC-Memphis, LLC,
No. W2019-00886-COA-R3-CV, 2021 WL 274761, at *6 (Tenn. Ct. App. Jan. 27, 2021) (collecting cases)
(noting that “we have often considered this issue in the absence of the argument being raised in the trial
court”).
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submissions and concluded the plaintiff’s proposal actually represented both
the jury’s verdict and the opinion of the Court as to the decision that should
be reached in this case.
...
The Findings of Fact and Conclusions of law entered in this case
accurately reflect the court’s opinion of the case and its confirmative decision
after reviewing and chronicling the evidence with the aid of the proposed
findings and conclusions submitted by the parties. See Smith v. U[H]S [of]
Lakeside, [Inc.], 439 S.W.[2]d [303], 315-16 (Tenn. 2014).
The trial record, as reviewed by the Court, does not create any doubt
the Court’s decisions in crafting and adopting its final findings and
conclusions were arrived at through the court’s own private deliberations and
decisions.
Weitz contends that reversal is necessary because of the trial court’s verbatim
adoption of Commercial Painting’s proposed findings, nevertheless, violated the
requirements established in Lakeside. This contention overreaches in multiple respects.
Foundationally, where a party has prevailed, in the absence of unusual circumstances, the
remedy has been vacating with this court remanding for the trial court to enter an
appropriate order in accordance with Lakeside, not reversal.20 Furthermore, in the wake of
20
See, e.g., Steinberg v. Steinberg, No. W2022-01376-COA-R3-CV, 2023 WL 8827667, at *6
(Tenn. Ct. App. Dec. 21, 2023)) (“[W]e vacate the trial court’s judgment and remand this matter to the trial
court for entry of an appropriate order demonstrating the trial court’s exercise of its independent judgment
and individualized decision-making.”); Kherani v. Patel, No. E2022-00983-COA-R3-CV, 2023 WL
6307502, at *10 (Tenn. Ct. App. Sept. 28, 2023) (stating that “we are left with two alternatives: vacate the
order and remand for further consideration by the trial court or conduct an ‘archeological dig[]’ if ‘the basis
for the trial court’s decision can be readily gleaned from the record’” (quoting Lakeside, 439 S.W.3d at
314)); Hoering, 2022 WL 987094, at *3 (noting that the appellate court has the option to remand for entry
of a sufficient order or to solider on); Calzada v. State Volunteer Mut. Ins. Co., No. M2020-01697-COA-
R3-CV, 2021 WL 5368020, at *4–6 (Tenn. Ct. App. Nov. 18, 2021) (“If those requirements are not met,
an appellate court may vacate the trial court’s order granting summary judgment and remand the case for
entry of an order that complies with Lakeside and Rule 56.04, rather than conduct ‘an archeological dig [to]
endeavor to reconstruct the probable basis for the [trial] court’s decision[.]’” (quoting Lakeside, 439 S.W.3d
at 314)); Smith v. All Nations Church of God, No. W2019-02184-COA-R3-CV, 2020 WL 6940703, at *13
(Tenn. Ct. App. Nov. 25, 2020) (noting that, in response to Lakeside, “we have held that the more modern
remedy for deficiencies in the trial court’s explanation for its ruling is to vacate the ruling and remand to
the trial court for the entry of a more illuminating order”); Cunningham v. Eastman Credit Union, No.
E2019-00987-COA-R3-CV, 2020 WL 2764412, at *5 (Tenn. Ct. App. May 27, 2020) (“[W]e cannot
determine that Executor’s proposed findings of fact and conclusions of law, adopted nearly verbatim by the
trial court, represent the trial court’s own independent analysis and judgment. Accordingly, we vacate the
trial court’s judgment and remand for entry of findings of fact and conclusions of law that reflect the trial
court’s independent ‘deliberations and decision.’” (quoting Lakeside, 439 S.W.3d at 316)); West v. West,
No. E2018-02277-COA-R3-CV, 2020 WL 1488582, at *5 (Tenn. Ct. App. Mar. 26, 2020) (“[T]he
appropriate remedy is to vacate the ruling and remand this matter to the trial court to issue sufficient findings
and conclusions.”); Hutton Team, LLC v. Ingles Markets, Inc., No. E2018-01372-COA-R3-CV, 2020 WL
- 19 -
Lakeside, this court has often simply soldiered on to address the substance of an appeal.21
This court has been especially reluctant to vacate and remand rather than soldiering on
where a case, much like the present one, has been lingering in the judicial system for many
years.22 Vacating has occurred primarily in cases which this court cannot decipher the trial
court’s reasoning or what its findings were as to an important issue or issues in the case,23
528023, at *7 (Tenn. Ct. App. Jan. 31, 2020) (noting that “when the absence of stated grounds does not
significantly impair appellate review, we may, in our discretion, decline to vacate the order”); Battery All.,
Inc. v. Beiter, No. W2018-02117-COA-R3-CV, 2019 WL 6954184, at *5–7 (Tenn. Ct. App. Dec. 19, 2019)
(stating that “the appropriate remedy is to vacate and remand to the trial court for a more in-depth ruling”);
In re Colton B., 2017 WL 6550620, at *5 (noting that vacating and remand is an appropriate remedy with
the trial court directed to enter an order that is the product of its own judgment); F & M Mktg. Servs., Inc.,
2015 WL 6122872, at *7 (remanding for entry of an appropriate order providing insight into the trial court’s
reasoning and reflecting its independent judgment).
21
See, e.g., Sura v. Jimmy’s Last Laugh, LLC, No. M2023-01174-COA-R3-CV, 2024 WL
2992962, at *7 (Tenn. Ct. App. June 14, 2024) (“In that situation, we also have the choice to either
independently review the record so long as the deficient order does not ‘significantly hamper’ our review
or to remand the case to the trial court for an order that complies with Rule 56.04.” (quoting Lakeside, 439
S.W.3d at 314)); Hoering, 2022 WL 987094, at *3; Hutton Team, LLC, 2020 WL 528023, at *7 (concluding
that the court could proceed to consider despite a violation where the grounds for the ruling were
discernable); In re Kingston A.B., No. M2018-02164-COA-R3-PT, 2019 WL 3946095, at *7 n.9 (Tenn. Ct.
App. Aug. 21, 2019) (“Moreover, we have independently reviewed the evidence presented in this case
regardless of the trial court’s findings and determined that the evidence was insufficient to establish a
ground for termination.”); Davidson Pabts, LLC v. Worsham, No. M2014-01061-COA-R3-CV, 2015 WL
4115174, at *3 (Tenn. Ct. App. May 18, 2015) (proceeding to consider the case on the merits where the
court was able to “readily discern the trial court’s reasoning from the record”).
22
See, e.g., Holston Presbytery of the Presbyterian Church (U.S.A.), Inc. v. Bethany Presbyterian
Church, No. E2022-01337-COA-R3-CV, 2023 WL 4789082, at *5–6 (Tenn. Ct. App. July 27, 2023), perm.
app. denied (Tenn. Dec. 20, 2023); Woody v. Woody, No. E2020-01200-COA-R3-CV, 2022 WL 678976,
at *11 (Tenn. Ct. App. Mar. 8, 2022) (soldiering on and stating that “we are mindful that this case has been
ongoing for several years at this point, and proceeding to the merits will afford the parties and Harper
resolution”); Roach, 2022 WL 1439349, at *4–5; Long, 642 S.W.3d at 812–17; Fed. Nat’l Mortg. Ass’n v.
Kebede, No. W2019-00227-COA-R3-CV, 2020 WL 7060019, at *4 (Tenn. Ct. App. Dec. 2, 2020) (noting
the deficiency of the order the court, but soldiering on and in doing so noting “that disputes concerning this
property have been fought in a multitude of cases over nearly a decade. As such, we will proceed to consider
the merits of Mr. Kebede’s arguments in order not to prolong this already protracted dispute.”); Huggins v.
McKee, 500 S.W.3d 360, 366–67 (Tenn. Ct. App. 2016) (soldiering on where the case “had been awaiting
resolution for nearly a decade”; in accordance with “the interest of providing the parties to this case a final
resolution of the issues” the court exercised its “discretion to proceed to consider the merits of this appeal”).
23
See, e.g., Friedsam v. Krisle, No. M2021-00530-COA-R3-CV, 2022 WL 3654658, at *10 (Tenn.
Ct. App. Aug. 25, 2022) (remanding because the trial court’s order was “virtually devoid of findings” as to
“a central issue in the case”); Calzada, 2021 WL 5368020, at *8 (vacating and remanding because “in the
absence of any explanation whatsoever that is reflective of or responsive to the specific arguments raised
in this case, we are left to guess as to why the trial court reached its conclusion”); Lucy v. Lucy, No. W2020-
01275-COA-R3-CV, 2021 WL 2579763, at *4 (Tenn. Ct. App. June 23, 2021) (declining to solider on
because “[w]ithout any factual findings to illuminate its reasoning, we are left to guess at how the trial court
reached its ultimate decision”); Bertuccelli v. Haehner, No. E2017-02068-COA-R3-CV, 2018 WL 6199229,
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where determining the basis of the trial court’s decision would require an “archeological
dig” through the record,24 or where there is real doubt as to whether the findings are actually
the trial court’s understanding or instead reflect an outsourcing of the reasoning/rationale
from the trial court to the prevailing party.25
In this case, while we agree with Weitz that the trial court’s approach in adopting
Commercial Painting’s proposed order nearly verbatim was not in accordance with
Lakeside (again assuming for purposes of argument its applicability to Hodges findings),
vacating is unnecessary and would be an unwarranted elevation of form over substance in
the present case. This is so for multiple interrelated reasons. One, this is not a case in
which there is a thin order or uncertainty as to the bases of the ruling. The findings of fact
and conclusions of law issued by the trial court in relation to Hodges are extensive and
thorough. In other words, we are not left guessing as to the bases of the decision to uphold
the punitive damages award in this case or needing to conduct an “archeological dig” to
determine the bases. Two, as reflected in various orders issued by the trial court including
but not limited to the trial court’s response to Weitz’s Lakeside argument in its motion for
new trial, the trial court conducted its own review in the present case. Three, there is no
substantive argument to even potentially solider on to address in this case. Weitz failed to
develop any substantive attack on the trial court’s factual or legal findings related to
Hodges. Despite the thoroughness of the trial court’s findings, Weitz has not developed a
substantive attack against the trial court’s Hodges findings. Thus, Weitz’s challenge to the
at *4 (Tenn. Ct. App. Nov. 28, 2018) (vacating and remanding because “there is nothing in the trial court’s
‘final order’ that explains its decision to grant Appellees’ motion for summary judgment as to all claims and
causes, and the order does not state the legal grounds for the grant of such summary judgment”); In re
Atrivium K., 2018 WL 4037414, at *3 (vacating and remanding in response to limited discussion and little
elaboration in an order that instead relied upon conclusory assertions seemingly cut and paste from the
complaint); In re Dakota M., 2018 WL 3022682, at *6 (vacating and remanding for entry of an order that
complies Tennessee Code Annotated section 36-1-113(k) in a parental termination case because the trial
court’s written findings contained “little to no elaboration”); Ray v. Petro, No. M2013-02694-COA-R3CV,
2015 WL 137309, at *5 (Tenn. Ct. App. Jan. 9, 2015); Eidson v. City of Portland, No. M2013-02256-COA-
R3-CV, 2014 WL 7421171, at *3 (Tenn. Ct. App. Dec. 29, 2014) (vacating and remanding where the court
was “unable to discern the basis of the trial court’s decision to grant summary judgment”).
24
See, e.g., McEarl v. City of Brownsville, No. W2015-00077-COA-R3-CV, 2015 WL 6773544,
at *3 (Tenn. Ct. App. Nov. 6, 2015).
25
Regions Com. Equip. Fin. LLC v. Richards Aviation Inc., No. W2020-00408-COA-R3-CV, 2021
WL 1811754, at *5–6 (Tenn. Ct. App. May 6, 2021); Cunningham, 2020 WL 2764412, at *5 (“[W]e cannot
determine that Executor’s proposed findings of fact and conclusions of law, adopted nearly verbatim by the
trial court, represent the trial court’s own independent analysis and judgment. Accordingly, we vacate the
trial court’s judgment and remand for entry of findings of fact and conclusions of law that reflect the trial
court’s independent ‘deliberations and decision.’”); In re Colton B., 2017 WL 6550620, at *5; cf. Lawrence
A. Pivnick, 2 Tenn. Cir. Ct. Prac. § 27:7 n.2 (“Even though trial court’s final order contains sufficient
findings of fact and conclusions of law . . ., a party on appeal may contest whether those findings and
conclusions clearly represented the trial court’s own analysis and deliberations.”).
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trial court’s Hodges order is somewhat reminiscent of Gertrude Stein’s observation
regarding Oakland: “[T]here is no there there.”26 Four, while this court has expressed
skepticism of party-prepared orders that include language noting that the decision reflects
the independent analysis of the trial court,27 the circumstances of this case are distinct. A
month after the issuance of the trial court’s Hodges order, Weitz raised the Lakeside issue
in a motion for new trial. Reflecting upon the motion and Lakeside, a little under a year
later the trial court expressly indicated that the findings in its Hodges order reflected the
judge’s thinking about the case. In a considered order as to which the trial court had time
for contemplation to reflect on its prior order, the trial court made plain that the findings
previously issued expressed the judge’s own views and understanding of the facts and law
of this case. As a result, vacating and remanding in the present case would amount to little
more than requiring the trial court judge to perform an editing task, requiring putting a
sufficient number of touches upon its prior findings to render the opinion the judge’s rather
than simply an adoption of Commercial Painting’s proposed finding.28 This editing would
be occurring within a backdrop in which Weitz has not developed any actual substantive
attack on the trial court’s original Hodges findings. Five, the only potential value of
vacating and remanding in the present case is related to the negative appearance stemming
from the trial court’s adoption of Commercial Painting’s proposed Hodges-related
findings. Under the circumstances of the present case, we fail to see how that purpose
would be served by a remand that would simply force the trial court to edit an opinion that
the trial court judge has indicated is an accurate reflection of his views and as to which
Weitz has not developed any substantive challenge. Six, this court has been especially
disinclined to vacate and remand in cases that have lingered in litigation for many years.
This case has been being litigated for nearly twenty years. This decision is the fourth round
of this case being addressed by this court. Accordingly, we conclude that vacating and
remanding in this case is unwarranted.
VIII.
26
Gertrude Stein, EVERYBODY’S AUTOBIOGRAPHY 289 (1937).
27
See, e.g., Johnson v. Johnson, No. E2023-01272-COA-R3-CV, 2024 WL 3596131, at *3 (Tenn.
Ct. App. July 31, 2024); Long v. Long, 642 S.W.3d at 813–15; Mitchell, 2019 WL 81594, at *6–7.
28
See, e.g., Salas v. Rosdeutscher, No. M2021-00449-COA-R3-CV, 2024 WL 1119818, at *1
(Tenn. Ct. App. Jan. 9, 2024) (“The trial court’s revisions, additions, and deletions to the order lead us to
conclude that the final order entered by the trial court reflected the judge’s independent judgment,
deliberation, and decision.”); Woody, 2022 WL 678976, at *11 (stating that “this Court has previously
determined that if a trial court alters a party-prepared order, that order can pass muster under Lakeside”);
Vaughn, 2021 WL 274761, at *6 (“[T]he written order ultimately entered by the trial court contains two
paragraphs that were not included in the proposed order. Although Ms. Vaughn appears to take issue with
the limited alterations made by the trial court, these alterations confirm that the order entered was not a
verbatim copy of what was submitted by DMC, but was the trial court’s own independent judgment.”).
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For these reasons, addressing solely the issues pretermitted in Commercial Painting
III, we affirm the judgment of the trial court. Costs of this appeal are taxed to the appellant,
The Weitz Company LLC, for which execution may issue if necessary. The case is
remanded for such further proceedings as may be necessary and consistent with this
opinion.
s/ Jeffrey Usman
JEFFREY USMAN, JUDGE
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